UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESPANOLA JACKSON; PAUL COLVIN;

THOMAS BOYER; LARRY BARSETTI;

DAVID GOLDEN; NOEMI MARGARET

ROBINSON; NATIONAL RIFLE

ASSOCIATION OF AMERICA, INC.;

SAN FRANCISCO VETERAN POLICE

OFFICERS ASSOCIATION,

Plaintiffs-Appellants,

CITY AND COUNTY OF SAN

FRANCISCO; EDWIN M. LEE, Mayor

for the City and County of San

Francisco; GREG SUHR, San

Francisco Police Chief,

Defendants-Appellees.

No. 12-17803

D.C. No.

3:09-cv-02143-

OPINION

Appeal from the United States District Court

for the Northern District of California

Richard Seeborg, District Judge, Presiding

Argued and Submitted

October 7, 2013—San Francisco, California

Filed March 25, 2014

JACKSON V. CITY & CNTY. OF SAN FRANCISCO2

Before: Dorothy W. Nelson, Milan D. Smith, Jr.,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

SUMMARY

Civil Rights

The panel affirmed the district court’s denial of plaintiffs’

motion to preliminarily enjoin two San Francisco firearm and

ammunition regulations in an action alleging that the

regulations were impermissible violations of the right to bear

arms under the Second Amendment.

The panel held that the first regulation, San Francisco

Police Code section 4512(a), (c)(1), which requires handguns

to be stored in a locked container at home or disabled with a

trigger lock when not carried on the person, burdened the

rights protected by the Second Amendment because such

storage regulations were not part of a long historical tradition

of proscription. Nevertheless, the panel determined that

section 4512 was not a substantial burden on the Second

Amendment right itself because it did not prevent an

individual from possessing a firearm in the home. Applying

intermediate scrutiny, the panel held that San Francisco had

shown that section 4512’s requirement that persons store

handguns in a locked storage container or with a trigger lock

when not carried on the person was substantially related to

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 3

the important government interest of reducing firearm-related

deaths and injuries.

The panel held that the second regulation, San Francisco

Police Code section 613.10(g), which prohibits the sale of

hollow-point ammunition within San Francisco, may burden

the core Second Amendment right of self-defense and the

record contained no persuasive historical evidence suggesting

otherwise. The panel therefore held that section 613.10(g)

regulated conduct within the scope of the Second

Amendment. Applying intermediate scrutiny, the panel held

that San Francisco carried its burden of establishing that

section 613.10(g) was a reasonable fit to achieve its goal of

reducing the lethality of ammunition.

The panel held that because San Francisco’s regulations

did not destroy the Second Amendment right, and survived

intermediate scrutiny, the district court did not abuse its

discretion in concluding that plaintiffs would not succeed on

the merits of their claims.

COUNSEL

C.D. Michel (argued), Michel & Associates, P.C., Long

Beach, California for Plaintiffs-Appellants.

Dennis J. Herrera, City Attorney; Wayne Snodgrass and

Christine Van Aken (argued), Deputy City Attorneys, San

Francisco, California for Defendants-Appellees.

Richard E. Gardiner, Fairfax, Virginia, for Amicus Curiae

The Law Enforcement Alliance of America.

JACKSON V. CITY & CNTY. OF SAN FRANCISCO4

Anthony T. Caso, John C. Eastman, and Karen J. Lugo,

Orange, California, for Amicus Curiae Center for

Constitutional Jurisprudence.

David B. Kopel, Denver, Colorado; Dan M. Peterson, Dan M.

Peterson PLLC, Fairfax, Virginia, for Amici Curiae

California Rifle and Pistol Association Foundation and

Independence Institute.

Don B. Kates, Battle Ground, Washington, for Amicus Curiae

FFLGuard LLC and Gun Owners of California, Inc.

Paul Flum and Anand Viswanathan, San Francisco,

California, for Amicus Curiae Brady Center to Prevent Gun

Violence and Major Cities Chiefs Association; Jonathan

Lowy, Washington D.C., for Amicus Curiae Brady Center to

Prevent Gun Violence.

Brent P. Ray and Casey R. Frank, Chicago, Illinois, for

Amicus Curiae Law Center to Prevent Gun Violence.

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 5

OPINION

IKUTA, Circuit Judge:

This appeal raises the question whether two of San

Francisco’s firearm and ammunition regulations, which limit

but do not destroy Second Amendment rights, are

constitutional. We conclude that both regulations withstand

constitutional scrutiny, and affirm the district court’s denial

of Jackson’s motion for preliminary injunction.

San Francisco Police Code section 4512 provides that

“[n]o person shall keep a handgun within a residence owned

or controlled by that person unless” (1) “the handgun is stored

in a locked container or disabled with a trigger lock that has

been approved by the California Department of Justice,” or

(2) “[t]he handgun is carried on the person of an individual

over the age of 18.”

S.F., Cal., Police Code art. 45,

§ 4512(a), (c)(1). Violations of section 4512 are punishable

by a fine of up to $1,000 and up to six months in prison. Id.

§ 4512(e).

San Francisco Police Code section 613.10(g) prohibits the

sale of ammunition that (1) has “no sporting purpose,” (2) is

“designed to expand upon impact and utilize the jacket, shot

or materials embedded within the jacket or shot to project or

disperse barbs or other objects that are intended to increase

Section 4512 also contains an exception for a handgun “under the

control of a peace officer.”

JACKSON V. CITY & CNTY. OF SAN FRANCISCO6

the damage to a human body or other target,” or (3) is

“designed to fragment upon impact.” S.F., Cal., Police Code

art. 9, § 613.10(g). Bullets that expand or fragment upon

impact are generally referred to as “hollow-point”

ammunition.

On May 15, 2009, Espanola Jackson, Paul Colvin,

Thomas Boyer, Larry Barsetti, David Golden, Noemi

Margaret Robinson, the National Rifle Association, and the

San Francisco Veteran Police Officers Association brought

suit against the City and County of San Francisco, and other

defendants, to challenge the validity of Police Code sections

4512 and 613.10(g) as impermissible violations of the right

to bear arms under the Second Amendment.

The individual

plaintiffs are handgun owners and citizens of San Francisco

“who presently intend to keep their handguns within the

home in a manner ready for immediate use to protect

themselves and their families.” The organizations have

brought this suit on behalf of their members, who have an

interest in keeping handguns within their home for self-

defense.

On August 30, 2012, Jackson moved for a preliminary

injunction. The district court denied that motion on

November 26, 2012. Plaintiffs filed a timely notice of appeal

on December 21, 2012.

III

Jackson challenges the district court’s order denying her

motion for preliminary injunction of sections 4512 and

We refer to plaintiffs collectively as “Jackson.” We refer to the

defendants as “San Francisco.”

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 7

613.10(g) on the ground that both infringe upon her Second

Amendment rights. To obtain a preliminary injunction,

Jackson must establish that (1) she is likely to succeed on the

merits; (2) she is likely to suffer irreparable harm in the

absence of preliminary relief; (3) the balance of equities tips

in her favor; and (4) an injunction is in the public interest.

Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046,

1052 (9th Cir. 2009) (citing Winter v. Natural Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008)). A denial of preliminary

injunction is reviewed for abuse of discretion. See Sanders

Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741,

744 (9th Cir. 2012). However, “[t]he district court’s

interpretation of the underlying legal principles . . . is subject

to de novo review.” Sw. Voter Registration Educ. Project v.

Shelley, 344 F.3d 914, 918 (9th Cir. 2003).

We turn first to the question whether the district court

abused its discretion in concluding that Jackson did not carry

her burden of showing a likelihood of success on the merits

of her challenge to sections 4512 and 613.10(g).

We begin with the text of the Second Amendment: “A

well regulated militia being necessary to the security of a free

state, the right of the people to keep and bear arms shall not

be infringed.” U.S. Const. amend. II. Our analysis of this text

starts with District of Columbia v. Heller, 554 U.S. 570

(2008). In Heller, the Supreme Court considered whether

the District of Columbia’s regulations, which barred the

possession of handguns both inside and outside the home,

and required other firearms to be kept “unloaded and

disassembled or bound by a trigger lock or similar device,”

violated the plaintiff’s Second Amendment rights. 554 U.S.

JACKSON V. CITY & CNTY. OF SAN FRANCISCO8

at 575. After undertaking a lengthy analysis of the original

public meaning of the Second Amendment, the Court

concluded that it confers “an individual right to keep and bear

arms.” Id. at 595. Guided by the same historical inquiry, the

Court emphasized that “the inherent right of self-defense has

been central to the Second Amendment right.” Id. at 628.

Therefore, prohibiting the possession of handguns was

unconstitutional. Id. at 628–29. Similarly, the District of

Columbia’s requirement that “firearms in the home be

rendered and kept inoperable at all times” made “it

impossible for citizens to use [firearms] for the core lawful

purpose of self-defense and [was] hence unconstitutional.” Id.

at 630.

Heller did not purport to “clarify the entire field” of

Second Amendment jurisprudence and does not provide

explicit guidance on the constitutionality of regulations which

are less restrictive than the near-total ban at issue in that case.

Id. at 635. But Heller’s method of analysis suggests a broad

framework for addressing Second Amendment challenges.

First, Heller determined whether the possession of operable

weapons in the home fell within “the historical understanding

of the scope of the [Second Amendment] right.” Id. at 625.

In conducting this analysis, Heller indicated that the Second

Amendment does not preclude certain “longstanding

prohibitions” and “presumptively lawful regulatory

measures,” such as “prohibitions on carrying concealed

weapons,” “prohibitions on the possession of firearms by

felons and the mentally ill,” “laws forbidding the carrying of

firearms in sensitive places such as schools and government

McDonald v. City of Chicago held that the Second Amendment right

recognized in Heller is fully applicable to the States. 130 S. Ct. 3020,

3050 (2010).

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 9

buildings,” “laws imposing conditions and qualifications on

the commercial sale of arms,” and prohibitions on “the

carrying of ‘dangerous and unusual weapons,’” referring to

weapons that were not “in common use at the time” of the

enactment of the Second Amendment. Id. at 626–27, 627

n.26 (internal citations and quotations omitted).

Next, after determining that the possession of operable

weapons fell within the scope of the Second Amendment,

Heller considered the appropriate level of scrutiny for the

challenged regulation. In light of the severity of the

restriction posed by the D.C. regulation, Heller determined

that it was unconstitutional “[u]nder any of the standards of

scrutiny that we have applied to enumerated constitutional

rights.” Id. at 628. As Heller made clear, “‘[a] statute which,

under the pretence of regulating, amounts to a destruction of

the right, or which requires arms to be so borne as to render

them wholly useless for the purpose of defence, would be

clearly unconstitutional.’” Id. at 629 (quoting State v. Reid,

1 Ala. 612, 616–17 (1840)). While Heller did not specify the

appropriate level of scrutiny for Second Amendment claims,

it nevertheless confirmed that rational basis review is not

appropriate, explaining that “[i]f all that was required to

overcome the right to keep and bear arms was a rational basis,

the Second Amendment would be redundant with the separate

constitutional prohibitions on irrational laws, and would have

no effect.” Id. at 628 n.27.

Like the majority of our sister circuits, we have discerned

from Heller’s approach a two-step Second Amendment

inquiry. See United States v. Chovan, 735 F.3d 1127,

1136–37 (9th Cir. 2013) (collecting cases). The two-step

inquiry we have adopted “(1) asks whether the challenged

law burdens conduct protected by the Second Amendment

JACKSON V. CITY & CNTY. OF SAN FRANCISCO10

and (2) if so, directs courts to apply an appropriate level of

scrutiny.” Id. at 1136 (citing United States v. Chester,

628 F.3d 673, 680 (4th Cir. 2010); United States v.

Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)). As other

circuits have recognized, this inquiry bears strong analogies

to the Supreme Court’s free-speech caselaw. See, e.g., Ezell

v. City of Chicago, 651 F.3d 684, 702–03, 706 (7th Cir. 2011)

(“Both Heller and McDonald suggest that First Amendment

analogies are more appropriate, and on the strength of that

suggestion, we and other circuits have already begun to adapt

First Amendment doctrine to the Second Amendment

context.” (internal citation omitted)).

In the first step, we ask “whether the challenged law

burdens conduct protected by the Second Amendment,”

Chovan, 735 F.3d at 1136, based on a “historical

understanding of the scope of the [Second Amendment]

right,” Heller, 554 U.S. at 625, or whether the challenged law

falls within a “well-defined and narrowly limited” category

of prohibitions “that have been historically unprotected,”

Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2733,

2734 (2011). To determine whether a challenged law falls

outside the historical scope of the Second Amendment, we

ask whether the regulation is one of the “presumptively

lawful regulatory measures” identified in Heller, 554 U.S. at

627 n.26, or whether the record includes persuasive historical

evidence establishing that the regulation at issue imposes

prohibitions that fall outside the historical scope of the

Second Amendment, Chovan, 735 F.3d at 1137. See also

United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012)

(noting that only “the few historic and traditional categories

[of conduct] long familiar to the bar” fall outside the scope of

First Amendment protection (internal quotations omitted)).

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 11

If a prohibition falls within the historical scope of the

Second Amendment, we must then proceed to the second step

of the Second Amendment inquiry to determine the

appropriate level of scrutiny. Chovan, 735 F.3d at 1136.

When ascertaining the appropriate level of scrutiny, “just as

in the First Amendment context,” we consider: “(1) ‘how

close the law comes to the core of the Second Amendment

right’ and (2) ‘the severity of the law’s burden on the right.’”

Chovan, 735 F.3d at 1138 (quoting Ezell, 651 F.3d at 703).

In analyzing the first prong of the second step, the extent

to which the law burdens the core of the Second Amendment

right, we rely on Heller’s holding that the Second

Amendment has “the core lawful purpose of self-defense,”

554 U.S. at 630, and that “whatever else it leaves to future

evaluation, [the Second Amendment] surely elevates above

all other interests the right of law-abiding, responsible

citizens to use arms in defense of hearth and home.” Id. at

635; see also Chovan, 735 F.3d at 1138 (stating that a core

right under the Second Amendment is “the right of

law-abiding, responsible citizens to use arms in defense of

hearth and home”).

In analyzing the second prong of the second step, the

extent to which a challenged prohibition burdens the Second

Amendment right, we are likewise guided by First

Amendment principles. Cf. Ezell, 651 F.3d at 706–07. As we

explained in Chovan, laws which regulate only the “manner

in which persons may exercise their Second Amendment

rights” are less burdensome than those which bar firearm

possession completely. 735 F.3d at 1138; see also Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989) (noting that

laws that place “reasonable restrictions on the time, place, or

manner of protected speech” and that “leave open alternative

JACKSON V. CITY & CNTY. OF SAN FRANCISCO12

channels for communication of information,” pose less of a

burden on the First Amendment right and are reviewed under

intermediate scrutiny). Similarly, firearm regulations which

leave open alternative channels for self-defense are less likely

to place a severe burden on the Second Amendment right than

those which do not. Cf. Marzzarella, 614 F.3d at 97

(applying intermediate scrutiny to a regulation which “leaves

a person free to possess any otherwise lawful firearm he

chooses—so long as it bears its original serial number”).

A law that imposes such a severe restriction on the core

right of self-defense that it “amounts to a destruction of the

[Second Amendment] right,” is unconstitutional under any

level of scrutiny. Heller, 554 U.S. at 629 (internal quotations

omitted). By contrast, if a challenged law does not implicate

a core Second Amendment right, or does not place a

substantial burden on the Second Amendment right, we may

apply intermediate scrutiny. See, e.g., Chovan, 735 F.3d at

1138–39; cf. Heller v. District of Columbia (Heller II),

670 F.3d 1244, 1257 (D.C. Cir. 2011) (“[A] regulation that

imposes a substantial burden upon the core right of

self-defense protected by the Second Amendment must have

a strong justification, whereas a regulation that imposes a less

substantial burden should be proportionately easier to

justify.”).

We now apply these principles to the facts of this case.

We begin by addressing Jackson’s facial and as-applied

challenge to the constitutionality of section 4512, which

requires handguns to be stored in a locked container when not

carried on the person.

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 13

As a threshold issue, San Francisco argues that Jackson

may not bring a facial challenge to section 4512. San

Francisco contends that Jackson conceded that locked storage

is appropriate in some circumstances, such as when it is

foreseeable that a child would otherwise gain possession of

a firearm. Therefore, San Francisco claims that section 4512

has a “plainly legitimate sweep,” and a facial challenge is

inappropriate. Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449 (2008) (quoting Wash. v.

Glucksberg, 521 U.S. 702, 739–40 & n.7 (1997)).

San Francisco’s argument reflects a misunderstanding of

the Supreme Court’s jurisprudence. Facial challenges are

disfavored for two reasons. First, when considering

“complex and comprehensive legislation,” we may not

“resolve questions of constitutionality with respect to each

potential situation that might develop,” especially when the

moving party does not demonstrate that the legislation

“would be unconstitutional in a large fraction of relevant

cases.” Gonzales v. Carhart, 550 U.S. 124, 167–68 (2007)

(internal quotation omitted). Second, facial challenges “often

rest on speculation.” Wash. State Grange, 552 U.S. at 450.

Consequently, “they raise the risk of premature

interpretations of statutes on the basis of factually barebones

records,” and “threaten to short circuit the democratic process

by preventing laws embodying the will of the people from

being implemented in a manner inconsistent with the

Constitution.” Id. at 450–51.

Jackson’s facial challenge to section 4512 raises neither

concern. First, section 4512 is not an example of “complex

and comprehensive legislation” which may be constitutional

JACKSON V. CITY & CNTY. OF SAN FRANCISCO14

in a broad swath of cases. Either it is a permissible burden on

the Second Amendment right to “keep and bear arms” or it is

not. Second, unlike the voting scheme at issue in Washington

State Grange, the constitutionality of section 4512 does not

turn on how San Francisco chooses to enforce it. The statute

constitutes a flat prohibition on keeping unsecured handguns

in the home. On its face, it does not give courts the

opportunity to construe the prohibition narrowly or accord the

prohibition “a limiting construction to avoid constitutional

questions.” Id. at 450.

We next apply the two-step inquiry to determine whether

section 4512 is constitutional. We consider whether section

4512 burdens conduct protected by the Second Amendment.

If so, we then determine an appropriate level of scrutiny.

Chovan, 735 F.3d at 1136.

First, we ask whether section 4512 regulates conduct

“historically understood to be protected” by the Second

Amendment “right to keep and bear arms.” Chovan,

735 F.3d at 1136, 1137. In analyzing the scope of the Second

Amendment, we begin with the list of “presumptively lawful”

regulations provided by Heller. See 554 U.S. at 626–27; see

also Chovan, 735 F.3d at 1137. Section 4512 resembles none

of them, because it regulates conduct at home, not in

“sensitive places”; applies to all residents of San Francisco,

not just “felons or the mentally ill”; has no impact on the

“commercial sale of arms,” and it regulates handguns, which

Heller itself established were not “dangerous and unusual.”

554 U.S. at 626–27.

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 15

Nor does section 4512 resemble the prohibitions

discussed in “historical evidence in the record before us.”

Chovan, 735 F.3d at 1137 (internal citation omitted). Heller

discusses two founding-era laws which regulated the storage

of firearms and gunpowder. See 554 U.S. at 631–32. First,

it notes a 1783 Massachusetts law that prohibited residents of

Boston from taking loaded firearms into “any Dwelling

House, Stable, Barn, Out-house, Ware-house, Store, Shop or

other Building.” Id. at 631 (quoting Act of Mar. 1, 1783, ch.

13, 1783 Mass. Acts p. 218.) Heller indicated that this statute

should be construed narrowly in light of its context, “which

makes clear that the purpose of the prohibition was to

eliminate the danger to firefighters posed by the ‘depositing

of loaded Arms’ in buildings.” 554 U.S. at 631. Heller also

concluded that the Massachusetts law was an outlier that

contradicted “the overwhelming weight of other evidence

regarding the right to keep and bear arms for defense of the

home.” Id. at 632. With respect to “gunpowder-storage

laws,” Heller noted they “did not clearly prohibit loaded

weapons, but required only that excess gunpowder be kept in

a special container or on the top floor of the home.” Id.

Because Heller rejected the probative value of this evidence,

these historical precedents do not establish that San

Francisco’s requirement is historically longstanding.

The other historical evidence in the record does not

establish that prohibitions such as those in section 4512 fall

outside the scope of “the Second Amendment, as historically

understood.” Chovan, 735 F.3d at 1137. San Francisco and

its amici note that many states regulated the storage of

gunpowder in the founding era, see, e.g., Act of June 28,

1762, 1762–1765 R.I. Acts & Resolves 132 (mandating that

large quantities of gunpowder be stored in a powder house);

1784 N.Y. Laws 627 (requiring gunpowder to be stored in

JACKSON V. CITY & CNTY. OF SAN FRANCISCO16

appropriate containers), and also point to reconstruction-era

state court decisions upholding gunpowder-storage

regulations as lawful applications of the state’s police powers,

see, e.g., Williams v. City Council of Augusta, 4 Ga. 509,

511–12 (1848); Foote v. Fire Dep’t of the City of New York.,

5 Hill 99, 100 (N.Y. Sup. Ct. 1843). But, as noted by Heller,

such laws are best described as “fire-safety” regulations.

554 U.S. at 632. The fact that states historically imposed

modest restrictions on the storage of gunpowder, a dangerous

and highly flammable substance, does not raise the inference

that the Second Amendment is inapplicable to regulations

imposing restrictions on the storage of handguns.

Because storage regulations such as section 4512 are not

part of a long historical “tradition of proscription,” Entm’t

Merchants Ass’n, 131 S. Ct. at 2734, we conclude that section

4512 burdens rights protected by the Second Amendment, see

Chovan, 735 F.3d at 1137.

Having determined that section 4512 regulates conduct

within the scope of the Second Amendment, we now turn to

the second step of the inquiry: deciding what level of

heightened scrutiny to apply to the ordinance. The level of

scrutiny depends upon “(1) how close the law comes to the

core of the Second Amendment right, and (2) the severity of

the law’s burden on the right.” Id. at 1138 (internal

quotations omitted).

We first consider whether the conduct regulated by

section 4512 is close to the core of the Second Amendment.

On its face, section 4512 implicates the core because it

applies to law-abiding citizens, and imposes restrictions on

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 17

the use of handguns within the home. See Heller, 554 U.S. at

635 (emphasizing “the right of law-abiding responsible

citizens to use arms in defense of hearth and home”). Section

4512 requires San Franciscans to choose, while in their

homes, between carrying a handgun on their person and

storing it in a locked container or with a trigger lock. S.F.,

Cal., Police Code art. 45, § 4512(a), (c)(1). As Jackson

argues, there are times when carrying a weapon on the person

is extremely impractical, such as when sleeping or bathing.

Therefore, as a practical matter, section 4512 sometimes

requires that handguns be kept in locked storage or disabled

with a trigger lock. Having to retrieve handguns from locked

containers or removing trigger locks makes it more difficult

“for citizens to use them for the core lawful purpose of self-

defense” in the home. Heller, 554 U.S. at 630. Section 4512

therefore burdens the core of the Second Amendment right.

This is not the end of our inquiry, however. We next look

to the severity of section 4512’s burden on the Second

Amendment right. Section 4512 does not impose the sort of

severe burden imposed by the handgun ban at issue in Heller

that rendered it unconstitutional. Id. Unlike the challenged

regulation in Heller, id. at 629, section 4512 does not

substantially prevent law-abiding citizens from using firearms

to defend themselves in the home. Rather, section 4512

regulates how San Franciscans must store their handguns

when not carrying them on their persons. This indirectly

burdens the ability to use a handgun, because it requires

retrieving a weapon from a locked safe or removing a trigger

lock. But because it burdens only the “manner in which

persons may exercise their Second Amendment rights,”

Chovan 735 F.3d at 1138, the regulation more closely

resembles a content-neutral speech restriction that regulates

only the time, place, or manner of speech. The record

JACKSON V. CITY & CNTY. OF SAN FRANCISCO18

indicates that a modern gun safe may be opened quickly.

Thus, even when a handgun is secured, it may be readily

accessed in case of an emergency. Further, section 4512

leaves open alternative channels for self-defense in the home,

because San Franciscans are not required to secure their

handguns while carrying them on their person. Provided San

Franciscans comply with the storage requirements, they are

free to use handguns to defend their home while carrying

them on their person.

Thus, Section 4512 does not impose the sort of severe

burden that requires the higher level of scrutiny applied by

other courts in this context. In Moore v. Madigan, for

instance, the government was obliged to meet a higher level

of scrutiny than intermediate scrutiny to justify a “blanket

prohibition” on carrying an operable gun in public. 702 F.3d

933, 940 (7th Cir. 2012). By contrast, section 4512 does not

constitute a complete ban, either on its face or in practice, on

the exercise of a law-abiding individual’s right to self

defense. Nor does section 4512 burden Second Amendment

rights to the same degree as a Chicago ordinance prohibiting

firing ranges in the city, which the Seventh Circuit analyzed

under “a more rigorous showing” than intermediate scrutiny,

“if not quite ‘strict scrutiny.’” Ezell, 651 F.3d at 708. The

Seventh Circuit reasoned that the “ban is not merely

regulatory; it prohibits the law-abiding, responsible citizens

of Chicago from engaging in target practice in the controlled

environment of a firing range,” and was therefore “a serious

encroachment on the right to maintain proficiency in firearm

use, an important corollary to the meaningful exercise of the

core right to possess firearms for self-defense.” Id. (internal

quotation marks omitted). Section 4512 does not impose

such a serious encroachment on the core right; rather, it is

more similar to the registration requirements upheld in Heller

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 19

II. In that case, the D.C. Circuit applied intermediate scrutiny

to evaluate registration requirements, including mandatory

firearm training and instruction, which “make it considerably

more difficult for a person lawfully to acquire and keep a

firearm, including a handgun, for the purpose of self-defense

in the home . . . .” 670 F.3d at 1255. The D.C. Circuit

reasoned that “none of the District’s registration requirements

prevents an individual from possessing a firearm in his home

or elsewhere, whether for self-defense or hunting, or any

other lawful purpose,” and therefore intermediate scrutiny

was appropriate. Id. at 1257–58 (emphasis added). Likewise,

section 4512 does not prevent an individual from possessing

a firearm in the home.

Accordingly, we conclude section 4512 is not a

substantial burden on the Second Amendment right itself.

Even though section 4512 implicates the core of the Second

Amendment right, because it does not impose a substantial

burden on conduct protected by the Second Amendment, we

apply intermediate scrutiny. Cf. id.

Having determined the applicable standard of review, we

must now determine whether section 4512 withstands

intermediate scrutiny. “[C]ourts have used various

terminology to describe the intermediate scrutiny standard.”

Chovan, 735 F.3d at 1139; compare Ward v. Rock Against

Racism, 491 U.S. 781, 798 (1989) (holding that “a regulation

of the time, place, or manner of protected speech must be

narrowly tailored to serve the government’s legitimate,

content-neutral interests but that it need not be the least

restrictive or least intrusive means of doing so,”) with Bd. of

Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)

JACKSON V. CITY & CNTY. OF SAN FRANCISCO20

(requiring “the government goal to be substantial, and the

cost to be carefully calculated,” and holding that “since the

State bears the burden of justifying its restrictions, it must

affirmatively establish the reasonable fit we require” (internal

citation omitted)). But “all forms of the standard require

(1) the government’s stated objective to be significant,

substantial, or important; and (2) a reasonable fit between the

challenged regulation and the asserted objective.” Chovan,

735 F.3d at 1139.

In analyzing the first prong of intermediate scrutiny

review, whether the government’s stated objective is

significant, substantial, or important, we must first define the

government’s objective. Cf. id. According to San Francisco,

the governmental objective in enacting section 4512 was to

reduce the number of gun-related injuries and deaths from

having an unlocked handgun in the home. See S.F., Cal.,

Police Code art. 45, § 4511(1)–(4). In considering a city’s

justifications for its ordinance, we do not impose “an

unnecessarily rigid burden of proof . . . so long as whatever

evidence the city relies upon is reasonably believed to be

relevant to the problem that the city addresses.” City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50–52 (1986).

Here, as the legislative findings explain, “[h]aving a loaded

or unlocked gun in the home is associated with an increased

risk of gun-related injury and death.” Id. § 4511(2). San

Francisco relied on evidence that “[g]uns kept in the home are

most often used in suicides and against family and friends

rather than in self-defense,” and that children are particularly

at risk of injury and death. Id. § 4511(3)–(4). San Francisco

therefore sought to “reduce[] the risk of firearm injury and

death” in the home through the use of trigger locks or lock

boxes under section 4512. Id. § 4511(5). “It is self-evident,”

Chovan, 735 F.3d at 1139, that public safety is an important

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 21

government interest. See, e.g., Nat’l Treasury Emps. Union

v. Von Raab, 489 U.S. 656, 670–71, 677 (1989) (holding that

government’s compelling interest in public safety justifies

drug testing of border agents who carry firearms); Madsen v.

Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994) (“The

State also has a strong interest in ensuring the public safety

and order . . . .”). Accordingly, San Francisco has carried its

burden of demonstrating that its locked-storage law serves a

significant government interest by reducing the number of

gun-related injuries and deaths from having an unlocked

handgun in the home.

We next turn to the question whether section 4512 is

substantially related to San Francisco’s important interest. In

considering the question of fit, we review the legislative

history of the enactment as well as studies in the record or

cited in pertinent case law, Chovan, 735 F.3d at 1140, giving

the city “a reasonable opportunity to experiment with

solutions to admittedly serious problems,” City of Renton,

475 U.S. at 52 (internal quotations omitted). In the legislative

findings accompanying section 4512, San Francisco

concluded that firearm injuries are the third-leading cause of

death in San Francisco, and that having unlocked firearms in

the home increases the risk of gun-related injury, especially

to children. See S.F., Cal., Police Code art. 45, § 4511(1)(e),

(2)–(3). The record contains ample evidence that storing

handguns in a locked container reduces the risk of both

accidental and intentional handgun-related deaths, including

suicide. Based on the evidence that locking firearms

increases safety in a number of different respects, San

Francisco has drawn a reasonable inference that mandating

that guns be kept locked when not being carried will increase

public safety and reduce firearm casualties. This evidence

supports San Francisco’s position that section 4512 is

JACKSON V. CITY & CNTY. OF SAN FRANCISCO22

substantially related to its objective to reduce the risk of

firearm injury and death in the home.

Jackson contends that section 4512 is over-inclusive

because it applies even when the risk of unauthorized access

by children or others is low, such as when a handgun owner

lives alone. We reject this argument, because San Francisco

has asserted important interests that are broader than

preventing children or unauthorized users from using the

firearms, including an interest in preventing firearms from

being stolen and in reducing the number of handgun-related

suicides and deadly domestic violence incidents. See id.

§ 4511(2)(d), (4). Intermediate scrutiny does not require that

section 4512 be the least restrictive means of reducing

handgun-related deaths. Ward, 491 U.S. at 798. Moreover,

the burden imposed by the legislation is not substantial. San

Francisco relied on evidence showing that section 4512

imposes only a minimal burden on the right to self-defense in

the home because it causes a delay of only a few seconds

while the firearm is unlocked or retrieved from storage.

Because the ordinance imposes only a minimal burden on

the right to self-defense and San Francisco’s interest

encompasses more than just preventing minors from gaining

access to firearms, the ordinance is appropriately tailored to

fit San Francisco’s interest.

Accordingly, San Francisco has shown that section 4512’s

requirement that persons store handguns in a locked storage

container or with a trigger lock when not carried on the

person is substantially related to the important government

interest of reducing firearm-related deaths and injuries.

Jackson is thus not likely to succeed on the merits, and we

therefore affirm the district court’s denial of Jackson’s

motion for preliminary injunction. Because we decide on this

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 23

basis, we need not reach Jackson’s arguments that she

established the remaining prongs of the preliminary

injunction standard. See Am. Trucking Ass’ns, 559 F.3d at

1052.

We now turn to the constitutionality of section 613.10(g),

which prohibits the sale of hollow-point ammunition within

San Francisco.

As a threshold issue, San Francisco contends that Jackson

lacks standing to challenge section 613.10(g). To satisfy

Article III standing, a plaintiff must show: “(1) an ‘injury in

fact’ that is ‘concrete and particularized’ and ‘actual or

imminent,’ not ‘conjectural or hypothetical’; (2) a ‘causal

connection between the injury’ and the challenged action of

the defendant; and (3) that it is ‘likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.’” Multistar Indus., Inc. v. U.S. Dep’t of Transp.,

707 F.3d 1045, 1054 (9th Cir. 2013) (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). An

injury in fact is an “invasion of a legally protected interest.”

Lujan, 504 U.S. at 560.

San Francisco asserts that Jackson has not suffered an

injury in fact because she could easily obtain hollow-point

ammunition outside San Francisco. But the injury Jackson

alleges is not the inconvenience of leaving San Francisco;

rather, she alleges that the Second Amendment provides her

with a “legally protected interest,” id., to purchase hollow-

point ammunition, and that but for section 613.10(g), she

JACKSON V. CITY & CNTY. OF SAN FRANCISCO24

would do so within San Francisco. That Jackson may easily

purchase ammunition elsewhere is irrelevant. “In the First

Amendment context, the Supreme Court long ago made it

clear that one is not to have the exercise of his liberty of

expression in appropriate places abridged on the plea that it

may be exercised in some other place. The same principle

applies here.” Ezell, 651 F.3d at 697 (internal citations and

quotations omitted). Accordingly, section 613.10(g)

constitutes an injury in fact to Jackson, and she has standing

to challenge it.

Applying the two-step analysis outlined above, we first

ask whether a prohibition on the sale of hollow-point

ammunition regulates conduct “historically understood to be

protected” by the Second Amendment “right to keep and bear

arms.” Chovan, 735 F.3d at 1136–37.

The Second Amendment protects “arms,” “weapons,” and

“firearms”; it does not explicitly protect ammunition.

Nevertheless, without bullets, the right to bear arms would be

meaningless. A regulation eliminating a person’s ability to

obtain or use ammunition could thereby make it impossible

to use firearms for their core purpose. Cf. Heller, 554 U.S. at

630 (holding that “the District’s requirement (as applied to

respondent’s handgun) that firearms in the home be rendered

and kept inoperable at all times . . . makes it impossible for

citizens to use them for the core lawful purpose of

self-defense and is hence unconstitutional”). Thus “the right

to possess firearms for protection implies a corresponding

right” to obtain the bullets necessary to use them. Cf. Ezell,

651 F.3d at 704 (holding that the right to possess firearms

implied a corresponding right to have access to firing ranges

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 25

in order to train to be proficient with such firearms). Indeed,

Heller did not differentiate between regulations governing

ammunition and regulations governing the firearms

themselves. See 554 U.S. at 632. Rather, the Court

considered the burden certain gunpowder-storage laws

imposed on the Second Amendment right, and determined

that they did not burden “the right of self-defense as much as

an absolute ban on handguns.” Id. This observation would

make little sense if regulations on gunpowder and

ammunition fell outside the historical scope of the Second

Amendment.

Conducting our historical review, we conclude that

prohibitions on the sale of ammunition do not fall outside

“the historical understanding of the scope of the [Second

Amendment] right.” Id. at 625. Heller does not include

ammunition regulations in the list of “presumptively lawful”

regulations. See id. at 626–27, 627 n.26. Nor has San

Francisco pointed to historical prohibitions discussed in case

law or other “historical evidence in the record before us”

indicating that restrictions on ammunition fall outside of the

historical scope of the Second Amendment. Chovan,

735 F.3d at 1137 (internal quotation omitted).

Because restrictions on ammunition may burden the core

Second Amendment right of self-defense and the record

contains no persuasive historical evidence suggesting

otherwise, section 613.10(g) regulates conduct within the

scope of the Second Amendment.

We next turn to the appropriate level of scrutiny to apply

to the challenged regulation. We consider how close section

JACKSON V. CITY & CNTY. OF SAN FRANCISCO26

613.10(g) is to the core of the Second Amendment right, and

the severity of its burden on that right. See Chovan, 735 F.3d

at 1138.

We first consider how close San Francisco’s ban on the

sale of hollow-point bullets comes to the core of the Second

Amendment right. Jackson contends that hollow-point bullets

are far better for self-defense than fully jacketed ammunition

because they have greater stopping power and are less likely

to overpenetrate or ricochet. Barring their sale, she argues,

therefore imposes a substantial burden on the right of self-

defense. We disagree. There is no evidence in the record

indicating that ordinary bullets are ineffective for self-

defense. Moreover, section 613.10(g) prohibits only the sale

of hollow-point ammunition within San Francisco, not the use

or possession of such bullets. Such a sales prohibition

burdens the core right of keeping firearms for self-defense

only indirectly, because Jackson is not precluded from using

the hollow-point bullets in her home if she purchases such

ammunition outside of San Francisco’s jurisdiction.

Nor does section 613.10(g) place a substantial burden on

the Second Amendment right. A ban on the sale of certain

types of ammunition does not prevent the use of handguns or

other weapons in self-defense. The regulation in this case

limits only the manner in which a person may exercise

Second Amendment rights by making it more difficult to

purchase certain types of ammunition. This is akin to a

content-neutral time, place, and manner restriction, such as a

regulation which prevents a person from owning a firearm

with an obliterated serial number while not barring the

possession of an otherwise lawful firearm. See Marzzarella,

614 F.3d at 97. Further, section 613.10(g) leaves open

alternative channels for self-defense in the home. Jackson

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 27

may either use fully-jacketed bullets for self-defense or

obtain hollow-point bullets outside of San Francisco’s

jurisdiction. Because section 613.10(g) neither regulates

conduct at the core of the Second Amendment right nor

burdens that right severely, we review it under intermediate

scrutiny.

In considering whether section 613.10(g) withstands

intermediate scrutiny, we must first define the governmental

interest served by section 613.10(g), and determine whether

it is substantial. Again, we review the legislative history of

the enactment as well as studies in the record or cited in

pertinent case law. Chovan, 735 F.3d at 1139. In the

legislative findings accompanying section 613.10(g), San

Francisco states that it “has a legitimate, important and

compelling government interest in reducing the likelihood

that shooting victims in San Francisco will die of their

injuries by reducing the lethality of the ammunition sold and

used in the City and County of San Francisco.” S.F., Cal.,

Police Code art. 9, § 613.9.5(6). It is self-evident that San

Francisco’s interest in reducing the fatality of shootings is

substantial. See Chovan, 735 F.3d at 1139.

We next consider the fit between section 613.10(g) and

this interest to determine whether section 613.10 is

substantially related to San Francisco’s important interest of

reducing the lethality of ammunition. See id. at 1140.

Legislative findings explain San Francisco’s reasons for

adopting the approach in section 613.10(g). Section

613.9.5(2) states that hollow-point bullets are “designed to

tear larger wounds in the body by flattening and increasing in

JACKSON V. CITY & CNTY. OF SAN FRANCISCO28

diameter on impact,” and that “[t]hese design features

increase the likelihood that the bullet will hit a major artery

or organ.” Therefore, San Francisco concluded that hollow-

point bullets are “more likely to cause severe injury and death

than is conventional ammunition that does not flatten or

fragment upon impact.” Id. Jackson generally argues that

these legislative findings rely on bad science and erroneous

assumptions. More specifically, she challenges San

Francisco’s conclusion that hollow-point ammunition is more

lethal than other bullets. She bases this argument on an

American Bar Association publication, which states that

“medical examiners have been unable to show any difference

in lethality between hollow-point and traditional round-nosed

lead bullets.” Lisa Steel, Ballistics, in Science for Laywers 11

(ABA Sec. of Sci. & Tech. Law) (Eric York Drogin ed.,

2008).

We are not persuaded by Jackson’s arguments. The

Supreme Court has held that a municipality may rely on any

evidence “reasonably believed to be relevant” to substantiate

its important interest in regulating speech. City of Renton,

475 U.S. at 51–52. Of course, “the municipality’s evidence

must fairly support the municipality’s rationale for its

ordinance,” City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425, 438 (2002) (plurality), and courts should not

credit facially implausible legislative findings. In this case,

San Francisco’s evidence more than “fairly supports” its

conclusion that hollow-point bullets are more lethal than

other types of ammunition. At most, Jackson’s evidence

suggests that the lethality of hollow-point bullets is an open

question, which is insufficient to discredit San Francisco’s

reasonable conclusions. Section 613.10(g) is a reasonable fit

for achieving its objective of reducing the lethality of

JACKSON V. CITY & CNTY. OF SAN FRANCISCO 29

ammunition because it targets only that class of bullet which

exacerbates lethal firearm-related injuries.

Jackson contends that San Francisco could have adopted

less burdensome means of restricting hollow-point

ammunition, for example by prohibiting the possession of

hollow-point bullets in public, but allowing their purchase for

home defense. See, e.g., N.J. Stat. Ann. § 2C:39-3(f), (g).

Even if this is correct, intermediate scrutiny does not require

the least restrictive means of furthering a given end. Ward,

491 U.S. at 798. City of Renton emphasizes that a “city must

be allowed a reasonable opportunity to experiment with

solutions to admittedly serious problems.” 475 U.S. at 52

(internal quotation omitted). We also doubt that the laws to

which Jackson points are indeed less burdensome than section

613.10(g). Because section 613.10(g) affects only the sale of

hollow-point ammunition, San Franciscans are free to use and

possess hollow-point bullets within city limits. Under

Jackson’s “less burdensome” alternatives, individuals would

face criminal prosecution for possessing such ammunition

outside the home. Given the availability of alternative means

for procuring hollow-point ammunition, section 613.10(g)

imposes only modest burdens on the Second Amendment

right.

Accordingly, we conclude that San Francisco carried its

burden of establishing that section 613.10(g) is a reasonable

fit to achieve its goal of reducing the lethality of ammunition,

and section 613.10(g) thus satisfies intermediate scrutiny.

We therefore conclude that Jackson has not carried her

burden of showing she is likely to succeed on the merits.

Accordingly, we need not reach the remaining preliminary

injunction factors. See Am. Trucking Ass’ns, 559 F.3d at

1052.

JACKSON V. CITY & CNTY. OF SAN FRANCISCO30

VII

We recognize the significance of the Second Amendment

right to keep and bear arms. “[I]t is clear that the Framers

and ratifiers of the Fourteenth Amendment counted the right

to keep and bear arms among those fundamental rights

necessary to our system of ordered liberty.” McDonald,

130 S. Ct. at 3042. But we also recognize that the Second

Amendment right, like the First Amendment right to freedom

of speech, may be subjected to governmental restrictions

which survive the appropriate level of scrutiny. Because San

Francisco’s regulations do not destroy the Second

Amendment right, and survive intermediate scrutiny, the

district court did not abuse its discretion in concluding that

Jackson would not succeed on the merits of her claims. We

therefore affirm the district court’s denial of Jackson’s

motion for preliminary injunction.

AFFIRMED.